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Interlocutory Appeal from the District Court,
Montrose County District Court Case No. 18CR178, Honorable
Mary E. Deganhart, Judge
Attorneys
for Plaintiff-Appellant: Dan Hotsenpiller, District Attorney,
Seventh Judicial District, Robert Davis, Deputy District
Attorney, Montrose, Colorado
Attorneys for Defendant-Appellee: Megan A. Ring, Public
Defender, Kori Keil Zapletal, Deputy Public Defender,
Montrose, Colorado
En
Banc
OPINION
BOATRIGHT,
JUSTICE
[¶1]
Police officers entered Jeremiah Tomaskes property without a
warrant and chased him into his house; Tomaske responded by
resisting and allegedly assaulting a police officer. We must
determine whether
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the evidence regarding Tomaskes actions was properly
suppressed. The trial court found that the police officers
initial entry onto the Tomaske property was a Fourth
Amendment violation. The court further found that Tomaskes
alleged assault "occurred only as a result of the
illegal action of law enforcement entering the
curtilage[1] and then the residence in violation of
the Fourth Amendment." As a result, the court suppressed
all evidence of the alleged assault.
[¶2]
Because Tomaskes decision to resist was an independent act,
we conclude that the evidence of Tomaskes alleged criminal
acts was sufficiently attenuated from the police misconduct.
Therefore, the evidence of what transpired inside the house
should not be suppressed. Accordingly, we reverse the trial
courts suppression order.
I. Facts and Procedural History
[¶3]
Mary Tomaske called the Montrose Police to report that her
car had been stolen by her son, Josh Tomaske, and that he was
potentially still on the property. While three officers were
en route to the Tomaske residence, they received a report
that the car had been returned. As the officers arrived at
the Tomaske residence, they confirmed that the car was parked
in the driveway but decided to investigate further. In doing
so, they entered the backyard and observed a man—
Jeremiah Tomaske— coming out of the detached garage and
heading toward the house. The officers asked Jeremiah if he
was Josh, the Tomaske who had reportedly taken the
car.[2] Tomaske responded that he was not, and
that Josh was his brother. Tomaske then told the officers
that they had no right to be there, but the officers
commanded Tomaske to come talk with them. Tomaske refused and
continued to move toward the house. The officers pursued
Tomaske through the backyard, and one officer followed him
into the house and tackled him to the ground. Tomaske
resisted and, in the course of the struggle, dislodged the
officers baton from his duty belt. At this point, the other
officers assisted in detaining Tomaske. Ultimately, Tomaske
was taken into custody.
[¶4]
Tomaske was charged with second-degree assault on a peace
officer, disarming a peace officer, attempted disarming of a
peace officer, and obstructing a peace officer. Tomaske moved
to suppress any statements from the officers about what
transpired inside the house, arguing that the evidence
stemmed from a warrantless entry and unlawful arrest.
[¶5]
The trial court suppressed the evidence. As an initial
matter, the trial court determined that the officers entry
into the backyard of the Tomaske home violated the Fourth
Amendment. The court then reasoned that Tomaskes actions
inside the house were "a continuation of the illegal
conduct of the officers." Therefore, the court
determined that Tomaskes conduct "was not sufficiently
attenuated as to dissipate the taint of the ...